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March 25, 2013

During our first year of law school, I suspect in the context of complaining about the work, we used to discuss things like which classes we liked or which we were having the most trouble with. As I participated in these conversations, I came to realize that I appreciated Civil Procedure because it was pretty explicitly about a set of clearly ennunciated and formally created rules. Torts to some extent was predicated on a certain way of thinking, even if that was never admitted, and if you didn’t happen to think that way, you were left to puzzle out a lot of implicit assumptions in the doctrines. Contracts and Property were somewhere in between, Contracts closer to Torts, and Property closer to Civ Pro, along the spectrum I envisioned.

I wasn’t all that surprised not to be on the same wavelength of the people who had developed Anglo-American law case law in areas such as torts. I had found even before this that for better or for worse, I don’t make a lot of the same assumptions most people do, and that when I am forced to try to guess what they are, I am often wrong. This comes up when I’m trying to fill out forms or navigate websites. Not making common assumptions does, however, come in handy when you’re doing academic research, because sometimes you see things in the evidence that prior, conventional thinking has missed.

If nothing else, codes give us a common text from which to follow, a same page on which we can all be at the start. So I can see how they are convenient. But I think their use has drawbacks, too, at least some uses in some contexts. Maybe like many other things, they are just another tool — to be used more or less helpfully.